This isn’t about a specific country’s definition of how a ‘supreme court’ system works; it’s merely a thought that has worked its way into my brain during several showers. By ‘supreme court’ I am referring to the top court in the land.
Society is moving faster than it ever has; not always in the direction an individual may want or desire, but, generally-speaking — in a democracy — it moves in the direction of the majority of the people.
Lifetime appointments are a problem. Ironically, the idea of lifetime appointments was initially conceived to depoliticize the courts. In my opinion, the world isn’t playing out that way at the moment.
Justices are biased – we all are – however, their biases should ideally not be political in nature. Be it through their appointments or their own political beliefs, politics should play no part in how laws are decided upon in a society.
If you know me, you know that I like trying to think through problems. And then trying to think of reasons why any ‘solution’ I come up with would itself be a problem. (Aside: it’s one of the reason I enjoy being a web developer). You’d also know that I like reading about, talking about, and generally trash talking the legal system, especially how important it is in our society and how little the general population knows about it and how that is a huge issue (because how does that problem get solved… by either politicians and/or people in the law themselves) and don’t get me started on the fact that a LOT of politicians are lawyers.
Aaaanyway, here’s one of the ideas my shower brain has been mulling for the past little while.
A party with more than 25% of the popular vote in a general election should be able to appoint a number of justices (let’s arbitrarily say 5) to the top court of the land. The party who has the closest to 25% (but not above 25%) gets to appoint 1 or 2 justices (to ensure that the number of justices isn’t even, reducing the risk of stalemate in the court).
The Apple party gains 49% of the vote, The Banana party gains 48% of the vote, The Cherry gains 2.5% of the vote, and the other parties are lower than 0.5% then:
The Apple party appoints 5 justices
The Banana party appoints 5 justices and
The Cherry party appoints 1 justice
Total: 11 Justices.
The Amber Party has 35% of the vote, The Blue Party has 32% of the vote, The Cerise Party has 26%, The… Dandelion (?) Party has 4%, and other parties are below 1% each then:
The Amber Party appoints 5 justices
The Blue Party appoints 5 justices
The Cerise Party appoints 5 justices
The Dandelion Party appoints 2 justices
Total: 17 Justices.
There’s more justices in the latter scenario, but that isn’t really a problem. Society has shown that it has more than just 1 or 2 points of view on a whole manner of topics (that’s how I tell myself politics plays out) and the court should reflect that.
The term length for each justice would be in line with the results of a general election up to a maximum of 2 concurrent terms. If a general election happens every 4 years, then a justice of the top court could serve a maximum of 8 years on the nomination from one party. A party would not be able to nominate the same justice more than twice.
However, another party could nominate a justice who has already served one or two terms after being nominated by a different party. This can only happen once, meaning that in a 4-year election cycle, the maximum amount of time a justice could serve is 16 years. The minimum, barring impeachment, is 4 years.
This one-party nomination term limit means that the justices on the court reflect the current state of society as a whole (theoretically anyway), and the ability for a party to be able to nominate a judge that another party has already previously nominated allows for some opportunity for political parties to work together towards a shared goal, where both parties could potentially get something that wanted, but if no deal can be struck then no party ‘loses’ anything.
So this actually explicitly says that some of the court could be political. And, I think, that’s OK. Simply because the court already is political. The ‘problem’ doesn’t “go away” but it does become more transparent.
The argument could be made that judges could be swayed by a secondary party after their initial nomination (in order to ‘keep their job’). The counterargument is that if you think that could be the case in this scenario, what is there to stop that happening now, with lifetime appointments? Not in terms of the logistics of it happening, more in terms of the morality of the situation. There’s still a requirement for trust in a justice’s morals in this hypothetical legal system, just like there is in our current system.
Note: This is a new thing I’m trying. I’m going to write (mostly publicly?) my shower thoughts on my blog. So it’s going to be all over the place. So it’s probably, mostly, for me, but I’d love it if you had some comments you wanted to make.